44 N.Y.S. 988 | N.Y. App. Div. | 1897
Lead Opinion
The plaintiff brings this action to recover the value •of seven notes, amounting in the aggregate to $2,638.98, and interest thereon, together with a roan cow of the value of $30, which she claims to own by gift from her uncle, the defendant’s testator, Sylvester Rix.
Clark Kix, being sworn as a witness in behalf of the plaintiff, testified that early one morning in May, 1891, while his uncle was suffering from an attack of pneumonia, the latter called him and his sister into his room, saying that he desired to talk with them respecting the property he intended to give them. In this conversation he said that
The evidence which has thus far been detailed was furnished mainly by witnesses sworn in behalf of the plaintiff, to meet which a number . of witnesses were called for the defense, who testified to admissions and declarations which they claimed to have heard the plaintiff make at various-times, which were somewhat contradictory of her evidence, and were to the effect that she did not have the notes in her possession, and had not received the interest on them as hers. The admissions and declarations thus detailed were, however, denied by the plaintiff when she was called to the stand to give evidence in rebuttal; and it will be readily seen that the learned referee was consequently forced to ascertain and determine the truth of this controversy upon evidence which was conflicting in its character, and which demanded the exercise on his part of good judgment and careful analysis, in order to determine its preponderating weight and value.
In cases of this nature, where claims are presented against a deceased party, it is unquestionably well settled by repeated adjudications that the same should be scrutinized with even more than ordinary care, in order to prevent, as far as possible, the allowance of unjust and fictitious demands against parties whose mouths are sealed by death. With this rule for our guide in the case under consideration, and with the application of the closest scrutiny to the evidence contained in the record, we are, nevertheless, of the opinion that it is ample to sustain the findings of fact and conclusions of law adopted by the learned referee. In saying this we assume that whatever title the plaintiff has to the property over which this controversy arises depends upon her establishing a valid gift thereof from the donor, her uncle; and to accomplish this—the gift being one inter vivos—there must be present five distinct elements in order to invest it with the quality -of validity. These elements are: “First. That the donor must be competent to contract; second, there must be freedom of will; third, the gift must be complete, with nothing left undone; fourth, the property must be delivered by the donor, and accepted by the donee; and, fifth, the gift must go into immediate and absolute effect.” Deposit Co. v. Huntington, 89 Hun, 465-469, 35 N. Y. Supp. 390, 392. There is no pretense that the donor was at any time incompetent to execute a valid gift of his property; neither is it claimed that the notes in suit were obtained by any coercive domination of his will power by the donee; but, as we understand the defendant’s position, it is insisted that the gift was not complete, in that it did not go into immediate and absolute effect by actual delivery, and this contention brings us back to a consideration of the proper value which may attach to the evidence furnished by the plaintiff in support of her claim. The defendant is undoubtedly correct in saying that there is no direct and
Having reached this conclusion in respect of the principal question brought to our notice upon this appeal, it only remains to consider one or two exceptions to the admission of evidence upon the trial. Among the witnesses called by the defendant was Arnold Kerkendall, who testified that in February, 1893, he heard the plaintiff tell one Mark Rix that she had never had these notes in her possession, and had never received any interest on them as hers. The plaintiff, upon being recalled to the stand, after denying the making of such statement, was asked where the notes were at the time of the interview between her and Mark Rix,—it being conceded that he was at her house upon one occasion, in company with Kerkendall. This question was objected to on the
“Upon the trial of an action or the hearing upon the merits of a special proceeding, a party or a person interested in the event, or a person from, through or under whom such a party or interested person derives his interest or title, by assignment or otherwise, shall not be examined as- a witness, in his own behalf or interest, or in behalf of the party succeeding to his title or interest, against the executor, administrator or survivor of a deceased person.”
’ And it would seem to follow that this witness was not disqualified, unless he was not only interested in the event of the action, but was also examined in his own behalf or interest. It is probably undeniable that the witness was, in a sense, interested in the event of the action; and, if he believed what he had stated to the defendant, he was, perhaps, in the same sense examined in his own behalf; but this is not the sense in which the word "interest” is used in this section. The test of interest which disqualifies a witness, not a party, under this section, is thus stated by Mr. Greenleaf in his work upon Evidence:.
*995 “The true test of the interest of a witness is that he will either gain or lose t>y the direct legal operation and effect of the judgment, or that the record will be legal evidence for or against him in some other action. It must he a present, certain, and vested interest, and not an interest remote, uncertain, or contingent.” 1 Greenl. Ev. § 390.
And this test has been frequently recognized and adopted by the courts of this state. Hobart v. Hobart, 62 N. Y. 80; Nearpass v. Gilman, 104 N. Y. 506, 10 N. E. 894; Wallace v. Straus, 113 N. Y. 238, 21 N. E. 66; Allis v. Stafford, 14 Hun, 418; Ely v. Clute, 19 Hun, 35. Certainly, the interest of Clark Rix in the event of this action was by no means present and certain. It was altogether uncertain, remote, and contingent; and any judgment which might be rendered herein could not be used as evidence in his action. However much he may have relied upon the advice which he says had been given, and however much he may have been influenced by such advice in giving his testimony, he was not interested in the sense in which that word is used in the section adverted to. And whatever interest he did have did not appear to prejudice him in the opinion of the learned referee, who takes occasion to say that he impressed him as a very candid witness, whose testimony was consistent with itself. We find no other exception in the case which seems to demand any attention, and our conclusion upon the whole case is that the judgment appealed from should be affirmed.
Judgment affirmed, with costs.
HARDIN, P. J., and WARD, J., concur.
Dissenting Opinion
(dissenting). The sole question involved in this action is whether the plaintiff established by legal and sufficient evidence that her uncle, Sylvester Rix, gave-to her the seven notes and the cow, the value of which this action is brought to recover. It has long been the rule in this state, so often declared that it has become elementary, that whoever claims title to property by gift must establish it by evidence that is clear, convincing, strong, and satisfactory. In such cases the law “does not so much consider the bearing or hardship of its doctrine upon particular cases as it does the importance of preventing a general public mischief which may be brought about by means, secret and inaccessible to judicial scrutiny, from the dangerous influences arising from the confidential relation of the parties.” 1 Story, Eq. Jur. § 310; Case v. Case, 49 Hun, 83, 1 N. Y. Supp. 714. The rule in such cases is that the gift must be established by evidence possessing the highest degree of probative force. All the authorities agree in this, though the rule is expressed in various forms. Scoville v. Post, 3 Edw. Ch. 203; Grey v. Grey, 47 N. Y. 552; Grymes v. Hone, 49 N. Y. 17; Shakespeare v. Markham, 72 N. Y. 400; Lewis v. Merritt, 113 N. Y. 386, 21 N. E. 141; Ridden v. Thrall, 125 N. Y. 572, 26 N. E. 627; Devlin v. Bank, 125 N. Y. 756, 26 N. E. 744; Van Fleet v. McCarn (Sup.) 2 N. Y. Supp. 675; Gaylord v. Gaylord, 7 N. Y. St. Rep. 703; Jennings v. Davis, 31 Conn. 138; Pom. Eq. Jur. § 1146. In Grymes v. Hone, supra, it was said:
*996 “As there is great danger of fraud in this sort of gift, courts cannot be toe cautious in requiring clear proof of the transaction. This has been the rule from the early days of the civil law (which- required five witnesses to such a gift) down to the present time."
In May, 1891, Sylvester Rix, the alleged donor, was very ill of pneumonia, at which time he was 81 years of age. This sickness was testified to by the plaintiff, by Clark Rix, her brother and principal witness, and by Grace Rix, a niece of the plaintiff, who was sworn in behalf of the plaintiff and testified:
“Am daughter of Clark Rix, and in May, 1891, lived with them [the plaintiff and her father] at TJncle Sylvester’s, when he had an attack of pneumonia. I remember father calling her [plaintiff] early one morning, and she went downstairs. Uncle was very sick at that time, but recovered,, and lived for more than a year after that, and was right around attending to his usual business.”
The only transaction between the alleged donor and the plaintiff in which anything was skid or done about giving her the property in suit occurred during this illness. At this alleged interview, Sylvester Rix, the plaintiff, and Clark Rix were alone present, and the only evidence describing the transaction was given by Clark Rix, who testified:
“When he [Sylvester Rix] was sick, in May, he called me early one morning and said, T want you to call Maryette.’ I called her, and we went into his room. He said, T want to talk with you and Maryette with reference to what I want to give Maryette and you.’ He said, T want her to have some notes.’ He said that the roan cow was hers, and that he wanted her to have the Leech note, the two Wetmore notes, and the Allen and Whitlock note. I said to him, ‘Uncle, I do not think we can hold that property.’ He said, ‘You can, because you will have possession of it. I will ask Hunt when he comes up.’ Hunt came up that morning, and he and uncle had a conversation there that morning. * * . * The conversation about the property that I lay claim to under gift took place at the same time as the conversation in which my sister claims that the notes were given to her. I went upstairs, and brought her down to hear that conversation, about four or five o’clock in the morning. The only persons who heard this conversation were my sister, Mr. Rix, and myself. He said he wanted to give her some notes. He named four different notes, and said, also, the roan cow. I did not see the tin trunk that morning, and no notes were present. He didn’t hand any notes to her. He said he was prostrated, and it might go hard with him. The only conversation I ever heard with Mr. Rix about giving away these notes was at five o’clock in the morning, when she was present, and afterwards when Hunt was present; and none of the notes on either occasion were present or delivered to her. Uncle got around after that.”
This is the only direct evidence given in behalf of the plaintiff tending to show that Sylvester Rix gave the property to the plaintiff, and this evidence falls far short of establishing a gift. The cow was on the farm, and remained there afterwards as before. The notes were not present, and were not delivered to the plaintiff. Delivery of a subject of a gift is essential to constitute a legal gift. The alleged donor did not surrender possession of the notes, or of any of the property, but retained all in his possession as before. It is conceded that thereafter and until his death Sylvester Rix received the interest on these notes as before. The plaintiff testified, “I never claimed that I collected interest on those notes.” The only corroborative evidence tending to support a gift of these notes was given by the widow of Alfred Leech, who testified that
“In the fall of 1892, he said that he had. given my sister some more of those notes. I-Ie said that she was an old woman for one of her age, and she had no home unless he provided for her. There was nobody to look after her, and he would provide for her. He said there was no one to provide for her, and that she would have to be taken care of, for she had no hom.e of her own. He spoke*998 of this Marvin note; said that there was thirty dollars that Marvin had paid him that should be indorsed; that sister had the note, and that the money had been used in fixing the house.”
It is upon such slender evidence that this claim is sought to be supported, and by a witness who characterizes his relation to the action and his interest in the result as follows:
“I have a lawsuit pending with the executor of the Sylvester Rix estate. X h*ve made a claim to certain personal property that was on the premises at the time of his decease, claiming that he had given it to me. I have stated to Dr. Hunt that I had been advised by counsel that, if Maryette won, I could win,”
After the death of Sylvester Rix these notes were in the posses-i sion of the plaintiff until the estate was inventoried, and that is urged as a circumstance tending to show a gift. The plaintiff had been a trusted domestic of her uncle for nine years. She knew where his notes were kept, and from time to time, when he had ocr casion to use them, he quite naturally sent her for them. He was old and feeble, and she was young and strong, and trusted by her uncle. After the death of the uncle, this plaintiff and her brother were in charge of the household, and the box where the notes were kept was not locked, and the fact that she had possession of these notes after his death has no probative force. Conklin v. Conklin, 20 Hun, 278; Grey v. Grey, 47 N. Y. 552; In re Bolin, 136 N. Y. 177, 32 N. E. 626; Kenney v. Public Adm’r, 2 Bradf. Sur. 319; Drischler v. Van Den Henden, 49 N. Y. Super. Ct. 508; Alsop v. Bank (Sup.) 21 N. Y. Supp. 300.
It is urged that this plaintiff performed unusual services outside of ordinary household duties for her uncle. The evidence is to the contrary. It is true that she sometimes milked the cows, drove them to and from the pasture; but during the period when she was performing these services Clark Rix was running the farm on shares, and it was for him, and not her uncle, that these services were rendered. So far as it appears, the duty of the plaintiff in the household of her uncle was simply to care for him and herself. Whether she was paid or not does not appear, but she at least was given one-half of his farm, the validity of which conveyance is not questioned. If it be conceded that every word of the testimony offered in behalf of this plaintiff is true, it fails to establish a cause of action. It is as well settled as anything can be that a gift made in anticipation of death is absolutely revoked by the recovery of the donor from the peril in the presence of which he made the gift. The fact that the gift claimed by the plaintiff was made in apprehension of death is clearly proved by the evidence given in her behalf, and it is also clearly proved by her witnesses that her uncle recovered from that sickness, lived more than a year, and took charge of his business as usual. This was a revocation of the gift. The fact that her uncle supposed that he had some personal property to dispose of, and that he made a will two days before his death, bequeathing all of his personalty to his only surviving brother, is some evidence that he believed that he had personalty to bequeath. On looking into the inventory, we find that he held notes amounting to more than $3,500; and Clark
The judgment should be reversed, and a new trial granted, with costs to abide the event.
GREEN, J., concurs.